This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2013AP238-CR

Cir. Ct. No.2011CF162

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT III

State of Wisconsin,

Plaintiff-Appellant,

v.

Glen G. Bowe,

Defendant-Respondent.

APPEAL
from a judgment of the circuit court for Dunn County:WILLIAM
C. STEWART, JR., Judge.Reversed
and cause remanded for further proceedings.

¶1MANGERSON, J.[1] The
State appeals a judgment reflecting Glen Bowe’s successful collateral attack of
a 2010 operating while intoxicated conviction.The State argues Bowe failed to make a prima facie showing that he was
denied his right to counsel in 2010 and, therefore, the circuit court erred by shifting
the burden to the State to prove Bowe validly waived his right to counsel.We agree Bowe failed to make the requisite prima
facie showing.We therefore reverse and
remand for further proceedings.

BACKGROUND

¶2On April 25, 2011, Bowe was charged with fourth-offense
operating while intoxicated.[2]The complaint alleged Bowe had three prior operating
while intoxicated convictions, which occurred in 1989, 1991, and 2010.Bowe collaterally attacked his 1991 and 2010
convictions. He alleged he entered pleas
to those charges “without having counsel present,” and he asked “the Court [to]
take no action on the matter until the defendant has gathered the necessary
information and court records to warrant a hearing.”

¶3Approximately six months later, the State moved the court to
deny Bowe’s collateral attack.It
asserted, in part, Bowe had not met his burden of making a prima facie showing
that his right to counsel was violated in the previous cases.The State attached to its motion a judgment
of conviction from the 1991 offense, which indicated Bowe had been represented by
attorney Lyle J. Black, and a copy of a signed waiver of the right to counsel
form that Bowe completed in the 2010 operating while intoxicated case.[3]

¶4In response, Bowe’s attorney filed an affidavit, averring that,
at the plea hearing for the 2010 conviction, Bowe appeared in person without an
attorney and no colloquy between Bowe and the court occurred regarding Bowe’s
waiver of counsel.Counsel provided the
court with a copy of the 2010 plea hearing transcript.He also argued circuit courts have an
affirmative obligation at the plea hearing to ensure a defendant has knowingly,
voluntarily, and intelligently waived his or her right to an attorney.Counsel asserted the court’s failure to
engage Bowe in a colloquy regarding his right to counsel amounted to a prima
facie showing that Bowe’s right to counsel was violated.

¶5In a written decision, the court first concluded Bowe had withdrawn
his collateral attack of the 1991 conviction because the judgment of conviction
indicated Bowe had counsel and Bowe did not offer anything to show his right to
counsel was violated.As for the 2010
conviction, the court concluded:

Based on this evidentiary record, the Court is of the
belief that the defense has made a prima facie showing that the defendant did
not knowingly, intelligently and voluntarily waive his right to counsel in the
[2010] Rusk County Case.Although the
defendant may ultimately not prevail in his challenge to the penalty
enhancement effect of a prior conviction, this record, in the opinion of the
Court, is insufficient in that the filings raise additional questions and
issues for the Court, which need to be amplified more formally rather than by
way of argument.

Therefore, the Court having found that the defense has
made a prima facie showing with regard to the defendant’s “waiver of counsel”
in [the 2010 case], the burden shifts to the State, and therefore, an
additional evidentiary hearing will be required.

¶6Following an evidentiary hearing, the court concluded Bowe’s
2010 conviction should be disregarded for trial and disposition of the current
case.Bowe then pleaded no contest to
third, instead of fourth, offense operating while intoxicated, and the court
found him guilty.[4]The State appeals.

DISCUSSION

¶7A defendant may collaterally attack a prior conviction in an
enhanced sentence proceeding on the ground that he or she was denied the
constitutional right to counsel.State
v. Hahn, 2000 WI 118, ¶17, 238 Wis. 2d 889, 618 N.W.2d 528.To collaterally attack a prior conviction,
the defendant must first make a prima facie showing that his or her
constitutional right to counsel was violated.State v. Ernst, 2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d
92.If the defendant makes a prima facie
showing, the burden shifts to the State to prove by clear and convincing
evidence that the defendant’s waiver of counsel was knowing, intelligent, and
voluntary.Id., ¶27.

¶8On appeal, the State argues Bowe failed to make a prima facie
showing that his right to counsel in the 2010 case was violated.“Whether a party has met [its] burden of
establishing a prima facie case [is] a question of law that we [decide] de
novo.”Id., ¶10.

¶9To make a prima facie showing that a defendant’s right to
counsel was violated, the “defendant must do more than allege that ‘the plea
colloquy was defective’ or ‘the court failed to conform to its mandatory duties
during the plea colloquy[.]’”Id.,¶25 (citing State v. Hampton, 2004 WI
107, ¶57, 274 Wis. 2d 379, 683 N.W.2d 14).Rather,

For there to be a valid collateral attack, we require
the defendant to point to facts that demonstrate that he or she ‘did not know
or understand the information which should have been provided’ in the previous
proceeding and, thus, did not knowingly, intelligently, and voluntarily waive
his or her right to counsel.

Id. (quoting Hampton,
274 Wis. 2d 379, ¶46).“An affidavit
from the defendant setting forth such facts [is] necessary, in order to
establish a prima facie case.”Id.,
¶33.“Any claim of a violation on a
collateral attack that does not detail such facts will fail.”Id., ¶25.

¶10In Ernst, Ernst collaterally attacked his prior operating while
intoxicated conviction by alleging he was “not represented by counsel and the
court did not take a knowing and voluntary waiver of counsel from the
defendant.”Id., ¶¶5, 26.He argued, “The Court did not take a valid
waiver of counsel … because the Court did not address each of the four Klessig[[5]]
factors with … Ernst in that case.”Ernst,
283 Wis. 2d 300, ¶26.Our supreme court
concluded Ernst failed to make a prima facie showing that his right to counsel
was violated because Ernst “made no mention of specific facts that show that
his waiver was not a knowing, intelligent, and voluntary one.Instead, Ernst simply relied on the
transcript and asserted that the court’s colloquy was not sufficient to satisfy
Klessig.”Ernst, 283 Wis. 2d 300, ¶26.The court reversed the circuit court’s
decision that Ernst had made a prima facie showing.Id.

¶11In this case, the State argues that, similar to Ernst, Bowe did
nothing more than assert the court failed to engage him in a proper waiver of
counsel colloquy at the plea hearing.The
State emphasizes Bowe’s trial counsel simply averred the court had failed to
engage Bowe in a colloquy and then provided the court with the 2010 plea
hearing transcript.The State explains Bowe
never pointed to any facts that demonstrated he did not know or understand the
information that should have been provided.Finally, the State argues that, pursuant to Ernst, the court’s
failure to engage Bowe in a colloquy cannot, by itself, amount to a prima facie
showing that Bowe’s right to counsel was violated.

¶12Bowe argues Ernst is distinguishable because, in
Ernst,
the court attempted to conduct a proper waiver of counsel colloquy and, in this
case, the court conducted no waiver of counsel colloquy at the plea hearing.Bowe argues the lack of colloquy, by itself, amounts
to a prima facie showing that Bowe’s right to counsel was violated.

¶13We reject Bowe’s arguments.First, the lack of a waiver of counsel colloquy does not, by itself,
amount to a prima facie showing that a defendant’s right to counsel was
violated.See Ernst, 283 Wis. 2d
300, ¶25 (defendant must do more than allege court failed in its mandatory
duties).Rather, as previously stated,

To make a prima facie showing a defendant is required
to point to facts that demonstrate that he or she did not knowingly,
intelligently, and voluntarily waive his or her constitutional right to
counsel.An affidavit from the defendant
setting forth such facts would be necessary, in order to establish a prima
facie case.

Id., ¶33.

¶14Here, Bowe’s prima facie showing consisted of nothing more than
an allegation that the circuit court failed to perform its mandatory
duties.Bowe did not aver that he did
not know or understand the information that should have been provided in the
previous proceeding.Because Bowe made
no specific averments regarding what he did not know or understand, we are left
to assume that, despite the court’s failure to engage Bowe in a proper
colloquy, Bowe knew and understood all of the information that should have been
provided regarding his right to counsel.Accordingly, we conclude Bowe failed to make a prima facie showing that
his Sixth Amendment right to counsel was violated in the 2010 case.We therefore reverse and remand for further
proceedings consistent with this opinion.

By the Court.—Judgment reversed
and cause remanded for further proceedings.

This
opinion will not be published.See Wis.
Stat. Rule 809.23(1)(b)4.

[1]This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2).All references to the Wisconsin Statutes are
to the 2011-12 version unless otherwise noted.

[2] He
was also charged with fourth-offense operating with a prohibited alcohol
concentration, hit and run of an attended vehicle, and operating while revoked.

[4] Bowe
also pleaded no contest to an amended charge of hit and run of an unattended
vehicle.The operating with a prohibited
blood alcohol concentration and operating while revoked charges were dismissed
outright.

[T]he circuit court must
conduct a colloquy designed to ensure that the defendant:(1) made a deliberate choice to proceed
without counsel, (2) was aware of the difficulties and disadvantages of
self-representation, (3) was aware of the seriousness of the charge or charges
against him, and (4) was aware of the general range of penalties that could
have been imposed on him.

Klessig,
211 Wis. 2d at 206 (internal citation omitted).The court must also ensure the defendant is competent to represent him
or herself. Id.